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bert having artyved here in Seotland, in the and example of others to committ the like hera moneth of May, 1683 years, he did address efter. himself to the laird of Torwoodlie, and they

Persewer,-Sir George M-Kenzie of Rose. sent for the laird of Polwart, Philiphaugh, and the said Walter earle of Tarras, and before haugh, his Majesties Advocat. Polwort came the said Mr. Robert Martyne, His Majesties Advocat produced a Warrand and the said Walter earle of Tarras, or at least of Privy Council, for persewing and insisting the said Walter earle of Tarras and the said against the said earle, whereof the tenour folPhiliphaugh did talk of a rising in armes upon | lowes : a supposition, if the countrey party in Eng- “ Edinburgh the day of November 1684, land, should have thoughts of going to arms, the Lords of his Majesties Privy Councilí and it it were pot fit in that case to seize upon doe heirby give order and warrand, to bis the officers of state, and other officers here, Majesties Advocat to persew a proces of treaand to surprize Berwick, and bis majesties son before the Lords Commissioners of Justigarrisons of'Sterling and others, and his troops ciary, against Walter earle of Tarras for the of horse, and dragoons within this kingdom, crymes of treason and rebellion, and others after which the said Walter earle of Tarras whereupon his Majesties Advocat shall indyt went to Gallowsheills, wher he did meet with him.

Èxtract by me, the lairds of Gallowsbeills and Polwart, and Sic Subscribitur. WILLIAM PATERSON.” after the said pannall had tryed if the laird of Gallowsheills would be secret, he did at last

The earle of Tarras produced a Petition formally talk of rysing in arms, and of con

under his band direct to the king's most sacred curring with the late earle of Argile a declared Majesty, whereof the tenor followes : traitor, who should land in the West, and of “ To his most sacred Majestie, the bumble bringing the king by petitions or by force to Submission and Petition of Walter earle of abandon his royall brother, and of delyvering Tartas, humbly sheweth, That his Majesties

him up to a legal tryall as a sure remedy for petitioner having received ane indytment of settling all disorders, and repairing all dis. High Treason, at the instance of his Majesties orders, and repairing all grievances both in Advocat, for the crymes of treason therein England and here, and as a certane stepp for mentioned, and the petitioner being concious secluding him from the succession to the im- to bimself of his haynous guilt therein; he is perial crown, of this his majesties auncient resolved in place of all other defences to through kingdom. And if this was not done in the himself at his Majesties feet, and submitt to king's own lyfetyme the opportunity would be bis Majesties mercy, his only hopes and trust Jost, and that these overtures were concerted being in his sacred Majesties clemency and betwixt the panpal's friends at London, and the goodness, that his Majestie would be graciously countrey partie (for so he called the saids con- pleased to pardon the petitioner's crymes and spirators) and then it was positivelie talked off, by the sparing of his life, giving him opportunity by ane or other of them that upon the certane for the tyme to come in some measure to exnewes of England's being in the fields, those of piat his former cryms and offences by bis the southero shyres should presently rise and dutifull and loyall deportment to his Majesty get also as many as they could who should be and his successors, which by the grace of Al. able to deal with stragglers, and that officers mighty God, the petitioner will for ever hera should be trysted to command. And that then efter inviolahlie preserve. So he doth most the late earle of Argile was to come from humblie acknowledge bis guilt conforme to his beyond sea, and sir John Còchran from Eng- Confession given under his hand to the Lords land to the west country, and ther was a sign of the Secret Committee the day of November and a word appoynted for thes they call honestlast, to which he does adhere, and holds the men to know ane another by. And that upon same as here repeated, and freely confesses the news the said pannal and they were to that by his crymes therein specified, his life have from England, they were to meet upon and fortune are justlie at his sacred Majesties middsummer therafter. 'Which overtures or mercy, and seeing now his Majesties petitioner ane or other of them, the said Walter earle of has a deep sense of the haynousness of his Tarras bimself made or heard and concealed guilt, and a just abhorrence of all such treasonthe same or at least he did talk what was to be able principles and practices, into which he has done, if England should rise, and did treat of been formerly grossly mislead to bis great re. giving them or the late' earle of Argile a de grate.-Therfore, humbly craving' his sacred clared traitor, some assistance here; or the said Majestie to take the petitioner's case to his pannall being present wher these or some commiseration and according to his Majesties such overtures as thes wer treated he did con- inherent and, usuall goodness and clemency, ceal and not reveal the samen. Through the to his penitent subjects, be graciously pleased committing of the which crymes above written, to grant mercy and pardon, to the petitioner, or either of them, he was guilty of the com- and he does faithfully promise as a Christian, mitting High Treason, and is actor, art and and a gentleman, that be shall ever be a loyali part thereof; which being found be ane as- and faithfull subject to his sacred Majestie and syse he ought to be punished with forfaul. his royall successors. ture of life, lands, and goods, to the terror Sic Subscribitur.

TARRAS."

The Lords having considered the Indytment His Majesties Adducat for Probation adduces persewed be bis Majesties Advocat, against the the pannall's judicial Confession in presence of earl of Tarras, they find the same relevant as the Justices and Assizers, wberof the tenor fol. it is lybelled to inferr the cryme of treason,* lowes : and remitts the same to the knowledge of the inqueist.

Walter earl of Tarras, after reading of his Assisa.t

indytment in presence of the Justices and As

sizers, confesses that about the tyme sir Jobo The Earle of Strathmoir.

Cochran and commissar Monro gott their comThe Earle of Lauderdale,

mission for the Carolina business from London, The Earle of Panmuir.

Mr. Robert Baillie, of Jerviswood, desired the The Earle of Belcarras.

pannall to speak to Commissar Monro, to try if The Lord Sinclair.

he could get him added to that commission, The Lord Bargany.

and that Jerviswood told the pannall that he The Lord Rollo.

was to goe to London, bowever upon his own The Mr. of Balmirrinoch.

expences, and that his and their going about Sir William Douglas, of Cavers.

the Carolina business was but a pretence, and Sir William Drummond, of Halthornden. a blind; but that the true designe was lo press Scott of Scotstarbat.

forward the people of England, (who would Sir James Richardson, of Smeitoun.

doe nothing but talk) to goe more effectuallie Sir Alexander Torbes, of Tolquhon.. about the business and doe somthing. ConSir Robert Baird, of Saughtonhall.

fesses that Jerviswood did setle a corresponMr. John Bayne, of Delney.

dence with him the pannall, wherby he was The Assyse lawfully sworne, no objection of the law in the contrair.

degree. But, although it often happened that

noblemen were summoned to the assize on * Concerning Interlocutor of Relevancy, such occasions, as there was an obvious prosee p. 1061, of this volume.

priety in granting such an indulgence where t.We in some measure pay regard to the it could conveniently be done; yet it does not maxim of trying a man by his peers, or per: absolute rule, of composing a nobleman's

appear that we ever came to acknowledge an sons of a degree not inferior to his own. In assize either entirely of noblemen, or even for this view, our practice seems once to have re: the major part, but only of landed men. And quired, that the assize for the trial of a landed indeed for long,

and until the

full establishment man should all be men of that condition ; and if he were a baron, or immediate vassal of the of parliamentary representation, the order of crown, that at least half of the assize should noblemen and other barons, or immediate vas. be barons also. To which effect judgment and therefore peers to each other in the strict

sals of the crown, were truly one and the same, was given after full debate, in the trial of Douglas of Spott, for the murder of Home of sense of law. Thus, on the trial of Janet Eccles, May 9th, 1667. “ The Justice findis Douglas, lady Glamyss, July 14th, 16th, 18th, the objectioun against the present assyze rele- 1537, for treason, only five poblemen sat on vant, and ordeins the persewars to summond the assize; on that of the earl of Orkney, ane new assysse to the fourth day of June next February 1st, 1615, eleven noblemen sat, and to come, to which day they continue the truall February 11th, and March 20th, 1635, eight

four landed men; on that of lord Balmerino, syse to be of the laird of Spott his owne noblemen, six baronets, and one landed man ; qualitie, vizt. Barouns holding of the King,

on that of the viscount Frendraught, July and the rest landit gentlemen, holding either 4th, 1664, two noblemen only, lord Blantyre of the King, or of ane uther superior be and lord Dunkeld; and on that of the earl of chartir.” In later times, without relinquishing Argyle, December 13th, 1681, four landed the principle, our Judges have thus far con

men, along with eleven noblemen. What is veniently modified the rule for such cases,

more express; on Noveniber 14th, 1655, the that a majority only of the assize are landed earl of Traquair [see MS. abstract of the men, and these, indifferently, vassals holding for there is nut now extant any original record

books of adjournal, in the advocates' library; of the crown, or of a subject.

of 1655), having olaimed a jury of noblemen, “ According to certain old, but not very the judges of that time found in substance, conclusive, authorities, (Statuit Dominus Rex, that the precedents which he appealed to were quod nullus debet recipere judicium, neque only in cases of treason, and therefore repelled judicari, a minori personâ quam a suo pari ; his plea in law; but ex gratiá, appointed three scilicet, Comes per Comites, Baro per Barones, noblemen to sit on the assize along with the Vacassor per Vacassores, et Burgensis per others, who were all of the degree of BaBurgenses. Quoniam Attachiamenta, c. 67; ronet.” Hume's Comment, chap. 11th, vol. also, Skene on Crimes, C. 4. sect. 3.) the same 2, p. 97, et seq. See also in this Collection, maxim was to be applied to the case of noble- the Protest of lord Linlithgow, in the Case of men also, who were to be tried therefore by an the earl of Loudun, p. 1002, of this volume. wasize consisting of persons of their own high See too p. 1043,

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to give ane account to the pannall, what should them, viz. the signe was by loosing a button pass betwixt the countrey party in England, on the breast, and that the word was 'harand the Scotsmen ther. And on the other hand, mony.' Confesses that at the house of Galthe pannall was to write to him what occurred lowshiells he heard it spoke off, that the king here. Confesses that Jerviswood sayd to him, by petitions or force, might be brought to abanif the king would suffer the parliament of Eng- don bis royall brother, and to delyver him to a land to sitt, and pass the Bill of Seclusion, that, legall tryall, (or words to that purpose) as a that was the only way to secure the Protestant sure remedy for settling all disorders, and rereligion. Confesses that Jerviswood said to pairing all grievances, both in England and him, that the king might be induced to do so if Scotland, and a certane step for secluding the the parliament would take sharp, or brisk mea- duke from the succession. And that he lucard sures with him, or the lyke words. Confesses it talked ther, that sir John Cochran was to these words were spoken by Jerviswood to him, come to Scotland with the rest of the Scotsmen. since the bolding of the last session of this Sic Subscribitur, TARRAS. current parliament, and before Jerviswood and

LINLITHGOW I. P. D. Commissar Monro went for London. Confesses that after Jerviswood went for London,

James Murray of Philiphaugh, aged tbretty he did give the pannall ane account by letters, former deposition emitted by him, and renewed,

years, marryed, purged and sworne, and his that things were in great disorder ther, and before the justices in the tryal against Jervis- • that he hoped ther would be effectual courses wood, being now againe publictlie read in pretaken to remeid them. Confesses that Mr. Robert Martyne came to Torwoodlie's house, adhered thereto in all poynts, and that the same

sence of the justices and assizers, he judicially in May 1683, or thereby, and brought a letter is truth, as he shall ansiver to God. to the pannall’s lady unsubscribed, but the pan.

Sic Subscribitur,

JA. MURRAY. nall knowes it was Jerviswood's write, who was then at London, and that Mr. Martine told Hugh Scot of Gallowshiels, aged thretty six the pannall, that things in England wer in years, marryed, purged and sworne, and bis great disorder, and lyke to come to ane height, former depositions emitted by bim, and renewed and that the countrey party wer considering on before the justices in the tryall against Jervismethods for securing the Protestant religion; wood, being now again publictlie read in preand that Archibald somtyme earl of Argyle, sence of the justices and assysers, he judicially was to get ten thousand pounds sterling. adheres thereto in all poynts, and that the same Wheras threttie thousand pounds sterling was is truth, as he shall answer to God. sought by the Scotsmen at London wbich was

Sic Subscribitur, Hugu SCOT. to be sent over to Holland, to provyd arms, and

LINLIthcow I. P. D. that the late Argyle was to land with thes arms in the west highlands in Scotland, and

The Lords ordaine the Assysers to inclose that Jerviswood was to be sent over with the and returne their Verdict to morrow, at twelve money. Confesses that Philiphaugh and he o'clock. went to Gallowshiel's house, wher they met with Polwart and Gallowshiels, and that it was CURIA JUSTICIARIÆ, S. D. N. Regis tenta in talked among them ther, that in case those in Pretorio Burgi de Edinburgh, sexto die England should rise in armes, that it wer ne- mensis, January millesimo sexcentesimo cessar in that case, that so many as could be octuagesimo quinto, per Nobilem et Pogotten on the borders, should be in readieness tentem Comitem Georgium Comitem de to deal with straglers, and seize upon horses, Linlithgow, Justiciarium Generalem, et that therefter they should joine with those that honorabiles viros, Dominos, Jacobum' were in arms on the borders of England. Con- Foulis de Collingtoun, Justiciarie Clefesses that in the case forsaid, it was said that ricum, Johannem Lockhart de Castlehill, it was convenient the castle of Stirline, Ber- Davidem Balfour de Forret, Rogerum Blog wick, and some other strengths should be de Harcarss, Alexandrum Seton de Pitseized upon, and that the king's officers medden, et Patricium Lyon de Carss of state should be seized upon, and it was Commissionaris Justiciarie dicti S. D. N. lykewayes spoke off amongst then, that

Regis. some persons should be imployed to 'enquire what armes was in that countrey.

Curia legitime affirmata. Confesses that it was spoke there, that the The said day the poblemen and gentlemen best tyme for Argyle, was to land in who past upon the Assyse of Walter earle of the west, when there was a sturre in England, Tarras, returned their Verdict in presence of the or Scotland, or words to that purpose. Con- saids lords, wherof the tenour followes : fesses that every one desired another to speak “ The Assyse by their unanimous voice find to such particular persons as they could trust the crymes of art and part as being upon the to, by letting a word fall indirectlie upon sup- contrivance of the conspiracy lybelied, and in position, in case of the rising in England, con- concealing and not revealing the same, and of cerning the affaire for preparing of them; and his accession to the designe of secluding his that he was told by Philiphaugh, therefter, royall highness the duke from the succession that ther was a word and signe used amongst proven against Walter earle of Tarras the pan. VOL, X,

3 Z

nall, in respect of the pannall's confession and him at liberty, upon his giveing good and petition, and the deposition of the witnesses ad- * sufficieut security for bis appearance before duced.

* you at whatsoever tyme or tymes he shall Sic Subscrib. LAUDERDALE, Chancellor. be by you thereunto requyred, and to cause After reading and producing of the whilk

"such a remissione to be drawne there and

• sent up to our secretaries of state, for that verdict of assyse, the lords justice general, justice clerk, and commissioners of justiciary sonable to be granted unto him in the termes

• our ancient kingdome as you shall judge reatherfor be the mouth of James Johnstoun,

aforesaid, which sball be soon signed by us dempster of court, decerned and adjudged the said Walter earle of Tarras to be execute to the

and returned, in order to the security of his death, demained as a traitor, and to underlye ratione to his name, fame and good reputa

• life and personall freedome, with his restauthe paines of treason, and utter punishment ap

* tion ; for doing all which these presents pointed by the lawes of this realme, at such a iyme, place, and in such manner as the king's

• shall be to you and all others respectively, most excellent majesty shall appoynt, and or

who may be therein concerned, a sufficient daines his name, fame, memory and boponrs to

• warrant. And so wee bid you heartily farebe extinct, bis blood to be tainteil, and his armes

• well. Given at our court at Whyteball the to be riven furth, and delate out of tbe books

twentieth and pynth day of January, 1684-5, of armes, sua that his posterity may never

. and of our reigne the 36th year, by his mahave place, nor be able herefter to bruik or in

jesty's command. joy any honours, offices, titles or dignities,

Sic Subscribitur, • J. DRUMMOND.'' within this realme in tyme coming, and to bave The Lords of his majesties privie councill fortault amitted, and lint all and sundry his doe bereby recommend to the lord bigh chan. lands, heretages, titles, offices, tacks, steddings, cellor, to give warrant for the said Walter late roomes, possessions, goods, and geir whatsom- earle of Tarras liberty, upon his finding secu. ever pertaining to him, to our soveraign lord's rity in the termes of his majesty's letter, under pise, to remaine perpetuallie with his bighness such a penalty as his lordship shall think fitt, in property, which is pronounced for Doom. and to give warrant to the clerks for receaving

the security, and his lordsbip is to designe the

penalty. At a Meeting of the Council, apud Edin- by the Council to go to the country for his

And upon March 10th, the earl was allowed burgum, Quarto die Februurij, 1685.

bealth, upon his bond to compear when called, The Letter under written, direct from the king to the councill, giveing order for Walter

On the 16th of June, 1685, “ All and whatEarle of Tarras liberty upon his giveing good soever the lands, lordships, baronies, heretages, and sufficient security in the termes mentioned

roums, possessions, milos, woods, fishings, in the said Letter, being read, was ordered to

tacks, steedings, teinds, annuabrents, patronbe recorded in the books of privie coupcill, ages, wodsets, expyred apprysings and adjuand the clerkswer appoynted to prepare the dications, castles, towers, fortalices, houses, draught of a remissione to him for his lyfe biggings, yairds, orchyairds, annexis, connexis, only, in such termes as the councill shall think tenderls, goods and aikers, and all other here reasonable ; and upon this ryse, it was or

tages, lands and estates whatsomever pertaindered, That all signatures for remissions here ing and belonging to the earle of Tarras, and after shall bear, that the same are to passe in several other persons who bad of late been the ordinary forme, and not per saltum, as bas torefaulted upon processes of treason, intented been of lite done, of which letter the tenor at the instance of sir George Mackenzie his followes :

majesty's advocat against them, both before the

bigh court of parliament and the commissioners • CHARLES R.

of justiciary, were annexed to the crown,* by • Right trusty and right well beloved cou

the 42nd act of the 1st session of king James sins and councellors, nghit trusty and well the following year was passed the following

the seventb's first parliament. However, in • beloved cousins and councellors, right trusty 6 and well beloved councellors, and trusty and

act (29th of the 2nd session of king James the well beloved councellors, Wee greet you

seventh's 1st parliament:) well. Whereas in compassione of the con. ditione of Walter Scoti, late earle of Tarras Act of DissOLUTION IN FAVOURS OF THE LATE

(now a prisoner there under the sentence of • condemnatione for high treason) and in con

Earl of TARRAS.—June 15th 1686. 4 sideratione of the great penitence shewed by Our Sovereign Lord and estates of parlia" him as well before and ai as since his tryali, ment, taking into their consideration, That his 6 wee are now graciously resoived to grant him majesties commissioner, as having special war- a remissione as to his life only, in such termes rand and instruction from his majesty, having • as you shall think reasonable to advise us. * It is now our will and pleasure, and wee doe * As to this see a Note p. 1009, of this bereby authorize and requyre you to sett volume,

proposed and expounded in plain parliament, | made the sixteenth day of June one thousand the great benefite and advantage, that did arise six hundred eighty five, and from all other to the crown and government of this kingdom, acts of annexation, and from all clauses, quaby the full and sincere confession made by lities, and conditions therein contained.' And Walter late earl of Tarras, of several matters his majesty, with advice and consent foresaid, and circumstances, relating to the late borrid, finds, decerns, and declares, That this present conspiracy, the discovery whereof, did in a act of dissolution, having proceeded upon the great measure contribute towards the prevent advice and deliberation of the estates of parliaing the fatal consequences and effects, which ment re integra, and found by the saids estates, so apparently threatened the peace of bis ma- to be for great, weighty, and reasonable causes, jesty's dominions. As also the promises and concerning the good, welfare and public interest assurances given to him at the time of tbe said of the whole kingdom, first proposed and ad. discovery of his prince's bounty and favour upon rised, and maturely pondered and considered that account * : all which being proposed and before any previous grant or other right or deed laid open in plain parliament, to the end the given, made, or done by his majesty, in favours three estates might give bis majesty their of the said Walter late earl of Tarras, and his judgment, advice and determination re integrå, foresaids, of the lands and others above menwhether the same were true, good, and reason- tioned, or any part or portion of the same, does able causes for dissolving from the crown, the fully satisfie' the whole clauses, conditions, and lands of Robertoun, Howcleuch, and Borth- qualifications contained in the forsaid. act of wick Mains, with the pertinents which for- annexation, and shall have the force, strength, merly appertained to the said Walter, late earl and effect of a general law, or act of parliaof Tarras, and came in bis majesties hands ment, and shall be also valid and effectual to through the doom and sentence of forefaulture, the said Walter late earl of Tarras, and liis given and pronounced against him before the foresaids, for their security of the lands and Lords of his majesties justiciary, upon the others above-exprest, as any other act of dis

day of one thousand six hun- solution, granted by bis majesty, or his royal dred years, and were annexed to the ancestors, with advice and consent of the escrown, by the 420 act of the first session of tates of parliament, in favours of whatsoever this current parliament; and the saids estates person at any time heretofore. Likeas his of parliament, after mature deliberation, and majesty, with advice and consent foresaid, treating and consulting anent the premisses, finds, decerns, and declares, That this present being fully satisfied and convinced, that the Act of Dissolution shall not be understood to particular services done and performed by the to fall under or be comprehended in any act said Walter late earl of Tarras, in his confes- Salvo jure,* to be past in this, or any other sion and discovery foresaid, and the benefit and advantage thereby accruing to the crown and * It was usual, at the end of a session of the kingdom, and the promises and assurances parliament of Scotland, to pass an act saving given to him of his prince's bounty and favour the rights of persons who had not been heard the truth whereof is sufficiently known, and previously to the passing of acts by which was made appear to them, are just, weighty and their interests might be affected. important causes, concerning both his majes- called “ Act Salvo Jure Cujuslibet.” Thus, the ties interest, and the public good and welfare following was passed at the end of the session of this kingdom, that they should advise and in which this act in favour of Lord Tarras had consent to his majesties giving and disponing of been enacted. the saids lands of Robertoun, Howeleuch, and • Act Salvo Jure Cujuslibet, June 15, 1686.' Borthwick-Mains, with the pertinents, to the . Our suveraign Lord, taking to considersaid Walter late earl of Tarras, bis heirs andation, that there are several acts of ratificaassigneys; and for that effect, that the same tion, and others past and made in this session should be dissolved from the crown, and from of parliament, in favours of particular perthe foresaid Act of Annexation. Therefore, His sons, without calling or bearing of such as majesty, with advice and constant of the es. may be thereby concerned or prejudged. tates of parliament, decerns, ordains, and de- . Therefore bis majesty, with advice and conclares that the saids lands of Robertoun, How · sent of the estates of parliament, statutes and cleuch, and Borthwick Mains, with the perti- ordains, That all such particular acts, and nents, may be disponed to the said Walter, acts of ratification past in manner foresaid, late earl of Tarras, and bis foresaids; and for shall not prejudge any third party of their that effect, bas dissolved, and hereby dissolves Jawful rights, nor of their actions and dethe same from the crown and patrimony there. * fences competentthereupon, before the making of, and from the foresaid Act of Annexation of the saids particular acts, and acts of rati

fieations; and that the lorils of session, and * Upon the Trial of Baillie of Jerviswood all other judges of this kingdom, shall be sir George M*Kenzie the king's advocate, in obliged to judge betwixt parties, according to maintaining the admissibility of Terras's testi- | their several rights, standing in their persons, mony, said, that the earl had not, nor had he before the making of the saids acts : all which ever sought any security in order to his de- ' are hereby exponed, and declared to have been poning. See p.669 of this Volume

• Toade Suluo Jure Cujuslibeti'

This was

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